Kohler Co.

716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kohler Company and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW Local 833. Cases 30-CA-8876 and 30-CA-8949 January 27, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On June 8, 1988, Administrative Law Judge Richard A. Scully issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs, and the Respondent filed an answering brief to the General Counsel's exceptions to the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. The General Counsel excepts to the judge's find- ings and conclusions that the Respondent did not violate Section 8(a)(5) and (1) of the Act by ex- cluding the material control clerks in the generator division from the bargaining unit. The General Counsel claims that the material control clerks in the generator division perform duties identical to those bargaining unit employees--the cycle counters in the engine and brass divisions and the senior record clerks in the generator division. We find that the record supports the judge's dismissal of this allegation. The material control clerks in the generator divi- sion administer a structured. cycle count program, which includes counting the inventory, entering the data in a personal computer, running the entire computer program, and making any adjustments in the computer on-hand balances that the program shows are necessary. The cycle counters in the engine and brass divisions do not administer a structured cycle count program, but simply phys- ically count the inventory in their division and report their findings to administrative, nonbargain- ing unit employees for processing. Thus, as the judge found, the material control clerks perform administrative functions not performed by the cycle counters in the engine and brass divisions. ' We note that the General Counsel has not filed exceptions to the judge's dismissal of the allegations concerning the Respondent's rescind- ing and reducing the 4-percent rate increase previously given certain foundry employees, and the Respondent's alteration of the parties' con- tractual grievance procedure for the processing and settlement of rate ad- justment and backpay grievances in its brass division. Only nonbargaining unit employees operate per- sonal computers. Although the material control clerks enter inventory data into personal comput- ers, the senior record clerks access the Tandem computer base. Further, the material control clerks run the entire computer program, including verify- ing the inventory count and making recommenda- tions to correct any discrepancies, while the senior record clerks essentially enter data into the Tandem computer data base. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Kohler Company, Kohler, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Gerald McKinney, Esq., for the General Counsel. Robert W. Mulcahy, Esq., of Milwaukee, Wisconsin, for the Respondent. George F. Graf Esq., of Milwaukee, Wisconsin, for the Charging Party. DECISION RICHARD A. SCULLY, Administrative Law Judge. On charges' filed by International Union , United Automo- bile, Aerospace and Agricultural Implement Workers of America, UAW Local 833 (the Union), the Regional Di- rector for Region 30 of the National Labor Relations Board (the Board) issued a consolidated complaint against Kohler Company on October 31, 1985. The com- plaint, as amended, alleges that the Respondent has com- mitted violations of Sections 8(a)(1), (3), (4), and (5) and 8(d) of the National Labor Relations Act (the Act). The Respondent filed a timely answer denying that it has committed any violation of the Act. A hearing was held on December 19 and 20, 1985, February 4-7, and March 4- , 1986, at which the parties were given a full opportu- nity to participate, to examine and cross-examine wit- nesses, and to present other evidence and argument. Briefs submitted on behalf of the parties have been given due consideration . On the entire record and from my ob- servation of the demeanor of the witnesses , I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material, the Respondent was a Wisconsin corporation with offices and facilities located in Kohler, Wisconsin, engaged in the manufacture and nonretail sale of plumbing products, engines, and generators. During the calendar year 1984, a representative period, the Re- ' The original charge in Case 30-CA-8876 was filed on July 26, 1985, and amended charges were filed on September 30 and October 29, 1985. The original charge in Case 30-CA-8949 was filed on September 30, 1985, and an amended charge was filed on October 29, 1985. 292 NLRB No. 70 KOHLER CO spondent, in the course and conduct of its business sold and shipped from its facility in Kohler, Wisconsin prod ucts goods, and materials valued in excess of $50 000 di rectly to points located outside of the State of Wisconsin The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED At all times material, the Union was a labor organiza tion within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Maintenance Stores Stock Control Clerk Issue In January 1983, the Respondent reclassified a vacant position of stock control clerk in its maintenance stores department which was a position within the bargaining unit, to the nonbargaining unit office administrative position of maintenance order clerk and filled it with an employee on layoff This was done unilaterally by the Respondent , without first bargaining with the Union The Union filed a charge a complaint issued , and the Board ultimately determined that the Respondent had violated Section 8(a)(5) of the Act by unilaterally re moving the stock clerk position from the bargaining unit 2 The Respondent was ordered , inter alia, to cease and desist from altering the composition of the bargain ing unit by reclassifying a position to remove it from the bargaining unit while the incumbent continues to do bar gaining unit work, without first negotiating with the Union and to cease giving effect to the reclassification of the position of maintenance stores stock control clerk from the bargaining unit unless and until Respondent has bargained in good faith with the Union concerning the reclassification Pursuant to that Order , on April 29 1985 the Respondent restored the position to the bar gaining unit by reclassifying it to the union eligible post tion of stock control clerk The job was posted and awarded to the incumbent Randall Clausing On May 6, the Respondent informed the Union that it was going to again reclassify Clausing s position to the nonbargaining unit position of maintenance order clerk and did so on May 13 The General Counsel contends that the Respondent has again violated Sections 8(a)(5) and 8(d) of the Act by unilaterally removing the same position from the bar gaining unit The Respondent denies this and argues that it informed the Union of its intention to reclassify the po sition, that it repeatedly requested that the Union bargain about the reclassification that the Union steadfastly re fused to bargain with it and that as a result of the Union s refusal it could lawfully reclassify the position Although the Respondent in the instant case sought to introduce evidence that its action in reclassifying the po sition was justified by the fact that the duties of the post tion had changed to such an extent that it was more properly an administrative job than a union eligible job this evidence was essentially the same as it had presented 2 Kohler Co 273 NLRB 1580 (1983) (Kohler I) 717 in Kohler I In that case it was found that the reclassifica tion was a unilateral change with no discernible eco nomic foundation and that the only cause for the change must have been to remove the position from union protection In the absence of any significant dif ferent facts in support of the Respondents similar action in reclassifying this position in May 1985, I necessarily conclude that there were no compelling circumstances which would justify the Respondents acting unilaterally The Respondent also contends that this issue is moot because the collective bargaining agreement executed by the Respondent and the Union on April 27 1984, specifi cally excludes from the bargaining unit order clerks in the maintenance division therefore the Union bar gained away the Maintenance Order Clerk position in the contract I do not agree There is no evidence that the negotiations leading to the agreement of April 27 1984, specifically dealt with the position in question The reclassification of Clausing s position was at that time the subject of pending litigation in Kohler I, throughout which the Union maintained that Clausing s position was properly that of stock clerk and union eligible, not that of order clerk and administrative, a position the Board upheld in Kohler I Also, long after the contract went into effect, the Respondent restored Clausing s job to the bargaining unit on April 27 1985, thus recognizing it as the position of stock clerk and union eligible under the contract Unlike the situation in Kohler I the Respondent con tends that its reclassification of Clausing s position in May 1985 was not unilateral, but was done only after giving the Union notice and the opportunity to bargain, which the Union refused By letter dated May 22 1984 the Respondent requested that the Union bargain regard ing reclassification of the maintenance order clerk The Union declined this request by letter dated May 31 on the ground that the proper time to bargain about the matter would be during bargaining prior to the expira tion of the then current collective bargaining agreement The Respondent informed the Union by letter dated June 14 1984 that it considered the Union to have waived its rights to bargain over the issue By letter dated March 26 1985 the Respondent again requested that the Union bargain about the reclassification and the Union declined by letter dated April 18 1985 As noted above on April 29, 1985 the Respondent reclassified Clausing s position to a union eligible position in order to comply with the Board's Order in Kohler I A week later the Respondent by letter of May 6 informed the Union that because it had rejected the Respondents requests to bargain over reclassifying the position the Respondent considered the matter to be at impasse and that it would reclassify the position out of the bargaining unit in the near future The Respondent did reclassify Clausing s position from union eligible stock order clerk to administrative maintenance order clerk The Respondent contends that the only obligation it was under regarding reclassifying the position was to bargain with the Union before doing so and that once the Union refused its requests for bargaining it was free to reclassify the position The Respondents argument ig 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nores the fact that the parties had executed a collective- bargaining agreement, effective from April 27, 1984, until October 1 , 1986, This agreement was in effect before May 22, 1984, when the Respondent first requested that the Union bargain with it about reclassification. At that point, the Union was under no obligation to bargain during midterm of the agreement and the Respondent's unilateral reclassification of the position , which was cov- ered by the agreement was in derogation of its bargain- ing obligation under Section 8(d) and a violation of Sec- tion 8(a)(5) of the Act.3 B. Lavatory Grinding Grievance 4154 1. Alleged 8(a)(3) violation The complaint alleged that the Respondent violated Section 8(a)(3) of the Act by rescinding a 4-percent in- crease in the incentive rate paid to employees doing work on a particular style of lavatory and refusing to give them backpay as it had agreed to do in settlement of a rate grievance and that it did this in retaliation for their having engaged in protected activity . The griev- ance in question, No. 4154, filed on October 31, 1983, al- leged that after a change in the method of chipping and reaming the lavatory, the applicable rate was inadequate for the workers to maintain earnings. This grievance eventually reached the fourth step of the grievance pro- cedure. The facts surrounding the alleged settlement of this grievance are far from clear . There is documentary evidence (1) that Chief Steward Darryl Harmelink, on behalf of the Union, and Industrial Engineering Supervi- sor Frank Fialkowski, on behalf of the Company, signed a memorandum, dated March 27, 1985, stating that in settlement of the grievance the Company had given a 4- percent concession on the rate and (2) that a new "rate sheet" reflecting a 4-percent increase was prepared, dated April 1, 1985, which indicated that the new rate was effective January 21, 1985. However, neither Har- melink nor Fialkowski gave any testimony as to how this settlement came about. Union President Robert Lettre testified about a "verbal agreement" on January 21, 1985, but he was not directly involved and the source of his information was not identified. Lettre testified that he and Harmelink met with Fial- kowski on April 12, 1985, in the latter's office, to resolve the matter of payment of the backpay due pursuant to the settlement of the grievance, something they had been "pushing" for prior to that date. When they asked Fial- kowski about it, he responded that his superior, Director of Manufacturing Anthony Bocchini, would not approve backpay and had told him to take back the 4-percent in- crease. According to Lettre, Fialkowski said Bocchini did this because the Union was "pushing for backpay." Harmelink gave similar testimony about this meeting with Fialkowski and the reason Fialkowski gave them for the settlement being rejected. Fialkowski testified that he met with only Harmelink on April 12 and told him that the tentative settlements on this and another grievance he had made with Harme- link had been rejected by Bocchini because they exceed- 8 C & S Industries, 158 NLRB 454, 457 (1966). ed the contractual maintenance of earnings levels. Fial- kowski told Harmelink that he lacked authority to make such concessions and that they would have to be re- moved. Anthony Bocchini testified that when he learned of the proposal to settle the grievance with a 4-percent concession he told Fialkowski that the concession was not necessary, that Fialhowski did not have the authority to grant it, that he should rescind it, and that if there was to be any increase in the maintenance of income level it should be done at contract time. The Company's vice president of human resources, Kenneth Conger, who has among his duties responsibility for collective -bargaining matters, credibly testified that on March 25, 1985, Har- melink telephoned and told him that he had an agree- ment with Fialkowski to settle the grievance with a 4- percent adjustment, but that Bocchini would not agree to the backpay involved. Conger asked why and Harmelink said he did not know. Conger said that he would find out and on March 27 sent Bocchini a memorandum in- quiring about the matter. Harmelink and Lettre claimed they had no knowledge of Bocchini's opposition to the 4-percent settlement before their meeting with Fial- kowski. Harmelink said he might have called Conger about the matter but could not recall doing so. The 4-percent increase was rescinded, effective April 15, 1985, the first workday after Fialkowski informed the Union that it would be done. On April 18, Lettre sent a letter to Conger protesting the Company's action. The letter refers to the agreement to increase the rate being "reversed by Ken Conger and Tony Bocchini," but makes no reference to it being done because the Union was pushing for backpay. Conger responded in a letter dated April 22, in which he stated that the tentative set- tlement had not been approved by the company officials with the authority to do so. Lettre wrote back to Conger on May 20 complaining about the Company's actions and arguing that the settlement was reasonable and that the agreement should be honored. The evidence fails to establish exactly when Fial- kowski and Harmelink reached agreement on the 4-per- cent increase or how it came about. There is no explana- tion why Fialkowski signed the settlement agreement on March 27, 2 days after Harmelink had called Conger and told him Bocchini would not approve the backpay. There is no explanation as to why, if the change giving rise to the grievance predated October 31, 1983, the set- tlement provided for backpay only from January 21, 1985.4 The allegation that the Respondent violated Section 8(a)(3) in rejecting the settlement is premised on the fact that it was done in retaliation because the Union was "pushing for backpay." I find that the General Counsel has failed to establish by a preponderance of the credible evidence that this was the reason or that protected con- duct was in any way a motivating factor in the Respond- ent's decision and, therefore, has not made out a prima facie case under Wright line.5 There is no evidence that * Conger's memorandum dated March 27, 1985 , states the company policy that when a rate is adjusted prospectively the company normally "make[s] the assumption that it should have been paid at that level from the time of the grievance and that backpay is therefore due." 5 251 NLRB 1083, 1089 (1980). KOHLER CO Bocchini, who made the decision on the Company's behalf, had been 'pushed" by the Union on the matter His credible testimony established that the reason he re jected the settlement was that he felt the concession re suited in a rate that was higher than what had been con tractually agreed on and that he did so immediately on learning what the terris of the proposed settlement were Fialkowski credibly testified that this was the reason he gave Harmelink I find it unlikely that had Fialkowski, in fact, told Lettre and Harmelink that the only reason backpay would not be paid was because Bocchini was "peeved" about the Union's "pushing" for it and that for this reason also the 4 percent concession would be re moved, Lettre would have made no reference to it in his letters of April 18 and May 20 The thrust of those let ters appears to be that Lettre and the Union were upset because the Company had reneged on an agreement, not that it had retaliated because of protected activity Simi larly, when he first described the April 12 meeting with Fialkowski in his testimony , Lettre did not mention the alleged retaliatory reason, but rather talked in terms of Bocchini s decision going back on Fialkowski's word The fact that Harmelink called Conger to discuss Boc china's opposition to the settlement on March 25, while Lettre testified that neither he nor any other union offs cial had any knowledge of a problem with the 4 percent adjustment before April 12, casts doubt on the veracity of Lettre and Harmelink in their testimony about the matter Considering all the evidence bearing on this issue, I find that it had not been established that the Re spondent rejected the settlement between Fialkowski and Harmelink in order to retaliate against the Union because it requested payment of the backpay that would normal ly have been generated by such a settlement or that Fial kowski told the union representatives that this was the reason the settlement was rejected I shall recommend that this allegation be dismissed 2 Alleged 8(a)(5) violation The Respondent's action in repudiating the settlement agreement between Fialkowski and Harmelink and re moving the 4 percent concession is also alleged to violate Section 8(a)(5) of the Act because it amounted to a uni lateral change in the conditions of employment I do not agree As noted above, the circumstances surrounding the agreement signed by Fialkowski and Harmelink on March 27 1985 , are unclear How it came about, given Bocchini s opposition, which Harmelink knew about has not been explained Under the circumstances I am unable to find that the agreement was binding on the Re spondent Although supervisors at Fialkowski s level had settled rate grievances in the past , in cases where back pay was due as the result of the settlement, a backpay memorandum had to be prepared and signed off on by higher management officials before any payment was made The Union was aware of that fact No backpay memorandum relating to grievance No 4154 was ever fa nally approved Further the evidence indicated that this grievance was pending at the fourth step of the contrac tual grievance procedure and had been there for some time prior to the date Fialkowski and Harmelink signed their agreement Lettre acknowledged that Fialkowski 719 was not one of the company officials who signed off on settlements at the fourth step There is no evidence that the grievance was removed from the fourth step and sent back to a level at which Fialkowski had authority to act Because it has not been established that this grievance settlement was effective to bind the company , it cannot be said that the Respondents repudiation of the settle ment amounted to a unilateral change in violation of Sec tion 8(a)(5) I shall recommend that this allegation be dis missed C Change in Grievance Approval Procedure On January 16, 1986 , Michael Mair, a supervisor in the Respondent's brass division, issued a memorandum in which he stated that effective immediately in instances where resolution of a rate grievance resulted in a rate in crease and backpay the industrial engineer would not sign off on the grievance until the backpay statement had been approved and backpay had been paid Previously, once an agreement had been reached between the indus trial engineer and the Union , the grievance settlement had been signed, the rate changed, and a backpay state ment prepared and circulated for approval , as in the case of the lavatory grinding grievance No 4154, discussed above It is alleged that this change in procedure was an unlawful unilateral change in violation of Sections 8(a)(1), (4), and (5) and 8(d) of the Act The General Counsel's position is based on the assumption that the settlement of a rate grievance was a bifurcated" process in which the rate adjustment and any resulting backpay were settled separately The evidence does not support this assumption There is substantial evidence in the record that whenever the settlement of a rate grievance by the Union's chief steward and the Company 's repre sentative called for the payment of backpay a backpay statement had to be prepared and circulated for approval of various management officials before backpay was au thonzed In each instance in which backpay was ap proved , a copy of the backpay statement was sent to the Union, which was clearly aware of the approval process There is no evidence of any grievance ever being settled in a bifurcated manner in which a rate increase was agreed on and continued in effect although the resulting backpay was denied In the only two instances that ap peared in the record where the backpay statement arising out of a rate grievance settlement were disapproved, the rate increases were also disapproved and removed From all that appears once a rate increase had been agreed on it was put into effect so that the backpay could be calcu lated as of a given date This appears to be a matter of administrative convenience rather than an acknowledg ment by the company that the matter was finally settled If it were true that once the rate change went into effect, the grievance was in fact settled the backpay statement approval procedure that had always been followed would be a meaningless exercise at best and at worst in every case a potential source of friction (if not ap proved), which could undermine the whole grievance resolution system Since the evidence does not establish that there was a bifurcated system of resolving rate grievances (which could produce contradictory results) 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it cannot be said that there has been a unilateral change in the contractual grievance procedure. All that has been changed is the way the Respondent's internal mechanism for reaching final approval of a rate grievance settle- ment, which results in a rate increase and backpay. This does not purport to be governed by the collective-bar- gaining agreement and does not change any of its sub- stantive provisions. I find that the Respondent's action did not violate Section 8(a)(5) of the Act. Although it may well be that this change in procedure arose out of the controversy over grievance No. 4154, which is a part of this proceeding, there is no evidence that the Re- spondent was seeking to penalize employees because of the charge that was filed or the testimony that was given in connection with that issue, which would constitute a violation of Section 8(a)(4) of the Act. On the contrary, its action appears to be an attempt to avoid future con- troversies by clarifying when a grievance settlement agreement has been finalized. I shall recommend that these allegations be dismissed. D. Removal of Cordax Layout Work from the Bargaining Unit David Reimer and Marlin Quast are members of the bargaining unit employed as group I inspectors in the engine division. For 6 or 7 years before September 1985, as a part of their duties as group I inspectors , Reimer and Quast had done "layout work" on a computer- equipped "Cordax" machine for 3 to 8 hours a day. In April 1984, a new computer was installed in the Cordax machine and certain supervisors and technicians, who are not members of the bargaining unit, were sent to a 1- week training course to learn how to use it. Despite their requests, Reimer and Quast were not given this training; however, they continued to work with the Cordax ma- chine and neither was ever told that his work on the ma- chine was deficient. On August 28, 1985, Chief Steward Donald Koenigs, who had been told by Reimer that he was being taken off the Cordax machine layout work and his shift was being changed, questioned Supervisor Peter DeTroye about it. DeTroye told Koenigs that he had recommended that the Cordax work be done by nonbargaining unit employees "Reliability Technicians II." On September 3, DeTroye gave Koenigs a memo- randum stating that effective that date all Cordax ma- chine work, including that previously done by group I inspectors, would thereafter be performed by the reliabil- ity technicians. He also gave Koenigs a revised statement of the group I inspectors' duties, which deleted the pro- visions concerning performance of layout work. When Koenigs objected to this change, DeTroye responded: "This is the way its going to be, do whatever you have to." On that date, Reimer began working on the first shift along with Quast and both were assigned to cali- brating gauges of which there was a substantial backlog. The Union objected and filed a grievance over the re- moval of the layout work from bargaining unit employ- ees. In January 1985, Koenigs had a discussion with Su- pervisor James Race in which he noted the backlog of gauges to be calibrated and suggested that an inspector be added or that Quast and Reimer be put on overtime to reduce the backlog. The complaint alleges that the Respondent violated Section 8(a)(5) of the Act by unilat- erally removing Cordax layout work from the bargaining unit. Reimer and Quast continued to do the same type of layout work they had previously done on the Cordax machine for about 16 months after it was retrofitted with the new computer. There is evidence that because of their lack of training on the new computer they occa- sionally had to seek assistance from the technicians who had received such training. There is also evidence that the Respondent removed the inspectors from the Cordax work in order to have them work full time on the back- log of gauges that needed to be calibrated. Although this establishes that the Respondent was motivated by effi- ciency and cost-savings considerations in making its deci- sion, there is nothing to suggest that there was any emer- gency situation that precluded it from bargaining before implementing its decision to remove the Cordax work from the bargaining unit. On the contrary, both the new Cordax machine computer and the gauge backlog were in existence for many months before the decision was im- plemented. In presenting this change in operations to the Union, the Respondent made it clear that it would not bargain it. It is also clear that the decision had an ad- verse affect on the bargaining unit because it removed a significant portion of the two group I inspectors' daily work (3 to 8 hours a day) and concomitantly reduced the likelihood of another inspector being added or overtime being given to reduce the gauge backlog. There is no evidence that the removal of Cordax layout work from the bargaining unit was the result of a fundamental change in the nature or direction of the Respondent's business, which could exclude it as a mandatory subject of bargaining.6 The layout work that was transferred to the nonunit technicians was the same that the inspectors had always done and, as noted above, reducing the labor costs involved was part of the Respondent's motivation. The Board has held that an employer violates Section 8(a)(5) and (1) of the Act by reassigning work performed by bargaining unit employees to others outside the unit without affording notice or an opportunity to bargain with the collective-bargaining representative.7 That is what the Respondent did in the present case. Although it claims its action was authorized by the management rights provision in the collective-bargaining agreement with the Union, a similar claim was raised and rejected in Kohler I in the context of reclassifying a position from within to outside the bargaining unit.8 I also conclude that it does not authorize removal of work from the bar- gaining unit. I find that the Respondent violated Section 8(a)(5) and (1) of the Act when it transferred the Cordax layout work from group I inspectors within the bargain- ing unit to reliability technicians who were outside the unit without first giving the Union an opportunity to bar- gain about this change. 6 Cf. Otis Elevator Co., 269 NLRB 891 (1984). 7 E.g., University Health Care Center, 274 NLRB 764 (1985). Technicol- or Services, 271 NLRB 1220 (1984); Fry Foods, Inc., 241 NLRB 76 (1979). 8 Kohler I, supra at 1583. KOHLER CO E Exclusion of Material Control Clerks from the Bargaining Unit In May 1985, the Respondent created three new pose tions in its generator division designated as material control clerks The Respondent takes the position that these jobs are adminstrative in nature and are excluded from the bargaining unit by the terms of the collective bargaining agreement The General Counsel contends that the duties performed by the material control clerks are virtually identical to those of employees in the bar gaining unit The Respondent did not bargain with the Union about the creation of these positions or their ex clusion from the bargaining unit and the Union has never acquiesced in their exclusion from the unit According to the credible testimony of David Fran zen the Respondents material control system project leader a formal cycle count program was set up in the generator division to eliminate the need for an annual physical inventory, which required shutting down the factory once a year to count the inventory The purpose of this cycle count program in the generator division is identical to that of the engine division and was intended to mirror the engine division program The brass diva Sion does not have a formal cycle count program Reso lution of this issue turns on whether the material control clerks duties are sufficiently dissimilar from those of the inventory counters who are included in the bargaining unit so as to warrant their classification as administrative and excluded from the unit A comparison of the duties of the three positions indicates that there are certain si milarities in their duties and purpose The basic function of each of the three positions is to make an accurate count of inventory The means of locating and counting parts are similar in each of the three divisions except that the generator division material control clerks do not op erate forklift trucks because most of the materials they count do not need to be moved Beyond this the nature of their jobs and the skills needed to perform them differ significantly The evidence indicates that the engine and brass division employees are basically manual laborers who find and count parts and report their findings to ad ministrative personnel who take the action necessary to adjust on hand balances Once the physical count and re porting are done, their responsibilities cease The maters al control clerks do much more than merely count inven tory they are responsible for maintaining the cycle count program This is a significant difference even in compan son to the engine division cycle counters who have no responsibility for analyzing count results or making ad justments to the computerized records The material con trol clerks take the count information and along with cost information they obtain from the tandem computer data base enter it into a personal computer and determine whether the count is within tolerance If not they find the reason for the discrepancy and correct it The mate real control clerks have access to cost data and perform functions which in the other divisions are limited to ad ministrative personnel There is no evidence that any bargaining unit personnel perform similar or comparable functions or have the access to the tandem computer data that the material control clerks have Because it ap pears that the principal functions and responsibilities of 721 the material control clerks are those normally performed by adminstrative personnel, who are specifically ex cluded from the bargaining unit by the collective bar gaining agreement and are significantly different from those of the employees in the bargaining unit, the Re spondent had no duty to bargain with the Union before creating this new classification of administrative employ ee Consequently it did not violate Section 8(a)(5) and (1) of the Act in doing so 9 CONCLUSIONS OF LAW 1 The Respondent, Kohler Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean mg of Section 2(5) of the Act 3 The Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act by unilaterally removing the position of mainte nance stores stock control clerk from the bargaining unit and by unilaterally removing Cordax layout work from the bargaining unit during the term of the then current collective bargaining agreement 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 5 The Respondent did not engage in unfair labor prac tices alleged in the amended consolidated complaint not specifically found here THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the pur poses of the Act Having found that the Respondent made unilateral changes in the employees terms and conditions of em ployment I shall recommend that it be required to re store the status quo ante by reinstating the position of maintenance stores stock control clerk in the bargaining unit and by assigning to group I inspectors in the bar gaining unit the Cordax layout work they did prior to September 1985 and to make them whole for any wages and/or overtime work they have lost as a result of the Cordax layout work being reassigned to employees out side of the bargaining unit plus interest computed in ac cordance with the Board s decisions in New Horizons for the Retarded 283 NLRB 1173 (1987), and Florida Steel Corp 231 NLRB 651 (1977) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edio "BASF Wyandotte Corp 276 NLRB 1576 1582 (1985) 10 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Kohler Company, Kohler, Wiscon sin, its officers, agents, successors, and assigns shall 1 Cease and desist from (a) Altering the composition of the bargaining unit by reclassifying a position to remove it from the bargaining unit while the incumbent continues to do bargaining unit work without first negotiating with the Union (b) Reassigning work performed by bargaining unit employees represented by the Union to employees who are not members of the bargaining unit, without first ne gotiating with the Union (c) In any like or related manner interfering with re straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Cease giving effect to the reclassification of the po sition of maintenance stores stock control clerk outside the bargaining unit until the Respondent has bargained in good faith with the Union concerning such reclassifica tion (b) Cease giving effect to the reassignment of Cordax layout work done prior to September 1985, by group I inspectors in the bargaining unit to employees who are not members of the bargaining unit until the Respondent has bargained in good faith with the Union concerning the reassignment of such work and make whole its group I inspectors for any loss of wages and/or overtime work resulting from the unilateral reassignment of such work, including interest thereon computed in the manner set forth in the remedy section of this decision (c) On request bargain with the Union concerning all proposed changes in the terms and conditions of employ ment of the Respondents employees in the bargaining unit (d) Preserve and, on request, make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards, personnel records and reports and any other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its facility in Kohler, Wisconsin copies of the attached notice marked Appendix 11 Copies of the I I If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board notice, on forms provided by the Regional Director for Region 30 after being signed by Respondent's authorized representative shall be posted by the Respondent imme diately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply IT IS FURTHER ORDERED that the consolidated com plaint is dismissed insofar as it alleges violations of the Act not specifically found APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT unilaterally remove positions from the bargaining unit WE WILL NOT unilaterally transfer work done by members of the bargaining unit to employees outside the bargaining unit WF WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act WE WILL return the Cordax layout work done by group I inspectors in the bargaining unit prior to Sep tember 1985 to them and WE WILL make them whole for any loss of wages resulting from unilateral transfer of such work with interest WE WILL on request bargain with the Union concern ing all proposed changes in the terms and conditions of employment of our employees in the bargaining unit KOHLER COMPANY